The Administrative Office of the U.S. Courts (“AOUSC”) provides legislative, legal, financial, technology, management, administrative, and program support services to the federal judiciary. AOUSC employees carry out a variety of tasks in support of the judiciary, such as ensuring that federal public defender programs are well-run and that information technology systems are secure, but AOUSC employees do not themselves decide individual cases or participate in any way with the decision process (in contrast to, for instance, a judge’s law clerks). Nonetheless, the AOUSC Director, James C. Duff, has barred all AOUSC employees — from the human resources specialist to the facilities manager, from the budget analyst to the employees in charge of maintaining the court’s public electronic records system — from a broad range of political activities that are open to virtually all other federal employees, including expressing their personal views publicly or on social media about partisan candidates for office, attending events for political parties or party candidates, joining a political party, and making donations (however small) to parties or partisan candidates. Because many partisan candidates are candidates for reelection to offices they currently hold, the ban on AOUSC employees’ speech regarding candidates encompasses in some instances speech about AOUSC employees’ own currently-serving elected officials. The AOUSC has asserted that the Code provisions are necessary to convey “the unity of purpose between the AO and the courts” and “to align ourselves more consistently with the Court Code,” i.e., the Code of Conduct that applies to judges.
In March 2018, the month the new Code became effective, the ACLU-DC wrote to Director Duff expressing concern about employees’ speech rights asking that nine specific restrictions on political speech and association be rescinded. Director Duff replied that the Code was “necessary to maintain the public’s confidence in the Judiciary’s work” — an interest that he believed “extended beyond” the interest in “prevent[ing] the appearance of corruption in the Legislative and Executive Branches.”
Because the vague and speculative interests asserted by the agency do not outweigh AOUSC employees’ rights to engage in core political speech and associational activity, the ACLU-DC sued Director Duff on behalf of two AOUSC employees to enjoin nine restrictions of the new Code on First Amendment grounds. Our clients are Lisa Guffey, a Supervisory Attorney Advisor whose job is to assess whether federal defender offices and court panel attorney programs across the country are properly resourced, operating effectively, and complying with relevant administrative policies and procedures, and Christine Smith, an IT Liaison whose responsibilities include making sure that the IT needs of federal public and community defenders are addressed, and making policy recommendations regarding cybersecurity. Both employees have had long and distinguished careers including years of federal government service; their political activities have never been as restricted as they are under the new AOUSC Code. Both would be currently participating in political activity with respect to upcoming or ongoing electoral races if not for the Code, which since it went into effect has already deterred them from donating money, expressing their views online, and attending a candidate event.
The complaint and motion for preliminary injunction were filed in May 2018.
In August 2018, the court granted our motion for a preliminary injunction, prohibiting the government from enforcing 7 of the 9 restrictions we challenged. The injunction protects the rights of more than a thousand government employees to express their views publicly about partisan candidates for office (including on social media), join political parties, attend candidate events, and make candidate contributions.
In April 2020, after further briefing, the court ruled for our clients on the merits, once again enjoining—this time permanently—7 of the 9 challenged restrictions, agency-wide. As a result of this decision, AOUSC employees will continue to be able to express opinions publicly regarding a political party or partisan candidate for office; wear or display partisan political badges, signs, or buttons; contribute funds to a political party, political action committee, or partisan candidate for office; attend partisan fundraisers; be a member of a partisan political organization; attend events for a partisan candidate for office; and attend party conventions, rallies, or meetings.
In the summer of 2020, the government appealed the decision as to the 7 restrictions on which we won, and we cross-appealed as to the 2 restrictions on which we lost. Briefing and argument took place in 2021.
In August 2022, the U.S. Court of Appeals for D.C. Circuit ruled that all nine of the restrictions we challenged were unconstitutional. The government argued that if employees engaged in the restricted activities, they would undermine public confidence in the judiciary as a whole or prevent Congress or judges from trusting the work of the AOUSC. The appeals court rejected these arguments, deeming them “too speculative to survive the scrutiny required for a regulation of political speech.” The court described the government’s fears as “novel, implausible, and unsubstantiated,” and noted that “[e]ven with eight decades of AO history to draw from, the AO has excavated no instance of off-duty political conduct by an AO employee that has injured the Judiciary’s reputation.” The court’s opinion specified that the relief it ordered—halting the nine challenged restrictions—could apply only to the two plaintiffs in the case, but it observed that “the AO is a government entity with an independent duty to uphold the Constitution” and therefore “[w]e trust that upon receipt of our judgment, it will reconsider the contested restrictions” as to the rest of its 1,100 employees.